Patrick Dodson (WA, Australian Labor Party, Shadow Assistant Minister for Reconciliation) Share this | Link to this | Hansard source

When the Native Title Act was passed in 1993 Paul Keating described it as an opportunity 'to do justice to the historic Mabo decision'. According to Keating, the act had twin goals: firstly, to protect the native title held by First Nations across the country and, secondly, to ensure workability and certainty for land management. Yet even in 1993 it was widely recognised that more was needed to redress the over 200 years of dispossession endured by First Nations. As Keating said at the time, the Native Title Act represented a mere modicum of justice for First Nations. It was meant to be accompanied by a land fund and social justice package, and that never eventuated.

Far from building on the promise of Mabo, subsequent years have seen the progressive erosion of native title rights and interests under the act. The destruction of the Juukan rock shelters by Rio Tinto earlier this year demonstrates the extent of this erosion. It reflects what we have heard in multiple reports and in the inquiry into the bill—that the original undertaking of the Native Title Act has been brought into disrepute.

This bill makes a number of reforms to the Native Title Act. Labor supports the bill, because we have no desire to delay the progress of those parts of the bill designed to improve the operation of the act. This includes changes to allow historic extinguishment over areas of national parks and state parks to be disregarded in certain circumstances. It also includes a number of changes that make modest improvements to procedural and technical elements of the act. These changes were widely supported by First Nations stakeholders. But I want to make it very clear that Labor remains concerned about several other provisions in this bill. Moreover, we recognise that the bill falls well short of the comprehensive reforms necessary to restore honour to the native title system in the wake of Juukan.

Along with my colleague Senator Carr, I had the privilege of participating in the committee's inquiry into this bill. As outlined in our minority report, the inquiry highlighted several specific concerns about the bill. One of these specific concerns involves the amendments to section 24EB and 24EBA, which deal with the deregistration of Indigenous land use agreements. Concerns were raised through the inquiry process that these changes purport to validate future acts done pursuant to the ILUA, even where the ILUA has been deregistered as a consequence of fraud, duress or undue influence. The government has said that these amendments implement a recommendation from the 2016 COAG investigation into Indigenous land administration and use. Importantly, however, this recommendation was opposed by the Expert Indigenous Working Group appointed to inform the investigation. Many submitters to the inquiry also expressed concerns about the consequences of validating future acts that done under later deregistered ILUAs. The Native Title Council raised concerns about these changes, saying that the changes would mean that any future act authorised by the ILUA that had been done through fraud, undue influence or duress remains valid and will still affect native title. Similar concerns were raised by the Law Council of Australia, which continues to oppose these amendments. While it does not fully address our concerns, we welcome the additional clarification that the government will add to the explanatory memorandum, at our request, which confirms that 'these measures do not affect the court's power under section 199C of the act and remove the detail of any agreement from the register and order appropriate compensation where an ILUA is affected by fraud, undue influence or duress'.

A second concern for Labor is that this bill creates a new ground enabling ORIC to place a registered native title body corporate into administration for failure to comply with its obligations under the native title legislation. While Labor supports better transparency and accountability, this new ground appears to apply not only where there is serious failure but also where there are a number of failures. A constant theme of the inquiry was the significant underfunding of registered native title body corporates and resulting struggles to discharge often overwhelming legislative and regulatory obligations. The Aboriginal and Torres Strait Islander Social Justice Commissioner told the inquiry that the limited financial resources and governance capacities of registered native title body corporates hinders their capacity to effectively discharge their statutory obligations and, most importantly, to fulfil the cultural, social and economic aspirations of native title holders. Without further funding for rep bodies, Labor shares the concern raised in the inquiry process that the increase in ORIC's power risks curtailing the rights of self-determination of the native title holders. Again, we welcome the government's clarification in the explanatory memorandum: 'It is not intended that this ground would be utilised in circumstances of multiple inadvertent and trivial breaches. It is intended that this ground would be utilised where the nature or cumulative consequences of a series of failures is more than trivial.' However, we remain cautious about the potential impact of this amendment and call on the government to substantially increase the technical and financial resources available to rep bodies to enable their compliance with their obligations and to ensure their capacity for self-governance.

It is clear that these amendments require careful oversight and monitoring. In our minority report to the committee inquiry, we recommended that the government include a formal evaluation mechanism to review the proposed changes in relation to their effects on the rights to culture and self-determination of First Nations peoples. This was also a recommendation of the Parliamentary Joint Committee on Human Rights report on the bill. We thank the government for accepting these recommendations and agreeing to an amendment to this bill requiring an evaluation and report on its operations within five years of commencement. Our firm view is that the amendments I have outlined should be reviewed as a priority, as part of an independent evaluation of this bill in five years time.

The more fundamental problem with this bill, however, is its failure to engage with the deepening fractures in the native title system. The last substantive legislative amendment to the Native Title Act occurred in 2007. In the years since, there have been significant developments in the native title sector, which the government has only selectively responded to. A number of significant inquiries into native title have made recommendations for reform that are yet to be acted upon.

In 2013 my colleague from the other place the member for Isaacs, when he was the Attorney-General, directed the Australian Law Reform Commission to inquire into a number of aspects of the Native Title Act. The terms of the inquiry focused on the law governing connection and native title claims. This is an area of the law that has proved notoriously complex and ill adapted to its task, failing to acknowledge the living and adaptive nature of First Nations cultures. The Law Reform Commission carried out that inquiry and provided a comprehensive report to the coalition government in May 2015, with 30 recommendations for reform. This bill addresses only a selection of technical refinements suggested by the review. It fails to address any of the recommendations in relation to the central focus of the review, the test of connection—recommendations that would do the most to protect advancements of the rights of First Nations peoples.

More than five years after the report was tabled, the government has still not formally responded to the Law Reform Commission's substantive recommendations for reform. Unfortunately, as our minority report indicated, this reflects a clear pattern from the government of being unresponsive to native title holders while being expedient to accommodate the interests of third parties. This is not protecting native title. Many submitters to the inquiry process noted the need for a comprehensive overhaul of the Native Title Act. The calls for reform have only grown since the devastation of the Juukan caves exposed the hollowness of protections afforded through the Native Title Act. It has shocked many to discover that Rio Tinto's destruction of the 46,000-year-old rock-shelters was entirely legal. The multiple legal frameworks ostensibly designed to uphold First Nations' rights failed to protect, and maybe even facilitated, the destruction of those precious pieces of human history. In this context, a thorough, detailed investigation, perhaps even a royal commission, is needed to investigate the operations of the Native Title Act and to recommend reform that will restore honour and integrity to the native title system.

For over 20 years the Aboriginal and Torres Strait Islander Social Justice Commissioner produced an annual report on the state of the native title system. This was ended because the government amended the act in 2017. I welcome the government's commitment to instruct the social justice commissioner to undertake a review of the Native Title Act once the commissioner's finished all the current work on her plate. This is an important step along the path to reform. I call on the government to provide the commissioner with the time and resources she needs to make this a meaningful review.

In conclusion, native title is an area of the law that goes to the very heart of the relationship between the Commonwealth and First Nations. Importantly, native title is not an act of largess of the Crown. It uniquely originates with and belongs to native title people. It predates the Australian common law. Since Mabo has been recognised by it, that recognition has been converted to statutory form by the Native Title Act. But we must take steps to ensure that this law, which is intended to recognise and protect native title, does not dishonour and destroy it. Those of us on this side of the chamber have a deep commitment to the native title system and to making the necessary changes to ensure its integrity. I call on those opposite to join us in that commitment. The passage of this bill certainly doesn't represent that the job has been well done or that the job has been done. Comprehensive reforms are still required. They must be followed up with meaningful reform—in particular, reform that will restore the honour and truth to a system that is essential as a source of pride for this nation. Thank you.

Lidia Thorpe (Victoria, Australian Greens) Share this | Link to this | Hansard source

I rise to speak against the Native Title Legislation Amendment Bill 2020, otherwise known as the 'naive title bill'. I wish to remind senators that article 32 of the United Nations Declaration on the Rights of Indigenous Peoples, the UNDRIP, reads as follows:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

This bill does not affirm the rights of our people to free, prior and informed consent. This is why it must not be allowed to pass as it is.

The position of the Australian Greens is very clear: free, prior and informed consent must be obtained from all traditional owners before anything happens on their land or their waters. It doesn't matter, or at least it shouldn't matter, how much the big mining companies and the politicians that they have purchased want this bill passed. If all of the traditional owners of any sovereign First Nation do not want it, then that should be the end of the discussion. It is for very good reason that certain areas of country or water should never be disrupted or desecrated.

I will be moving amendments to this bill to separate schedule 3 from the rest of the bill. In my view, schedule 3 is the most beneficial for our people. It will allow for native title applications to be made over national, state or territory parks where currently this is not available. However, senators will note that my amendment goes further than just opening up national, state and territory parks for native title claims. Rather, it opens all Crown land for native title claims by negotiation and agreement between the relevant government and traditional owners—sovereign to sovereign. I'm calling on the support of my fellow senators for my amendments. This issue is too important for our people to just wave this problematic bill through as it is. I am a traditional owner and I know that the native title process is an obstacle course, and this bill mostly adds even more obstacles. It's destroyed country and destroyed families. In the main, only the lawyers, anthropologists and mining companies reap the most benefits.

It's hardly surprising that companies with mining and exploration interests are the ones who are most in favour of this bill. They're going to rake in the dollars, which is all they care about. The naive title system, or the native title system, is not about returning the rights of our people to their lands and waters—lands and waters that were stolen and never ceded. The native title system is about doing everything possible to keep us from them. Native title is not land rights. Mining companies, with the permission of the politicians that they've purchased, have absolutely no problem getting access to country, which tells you everything you need to know about who this bill really is for. Rio is still making millions after desecrating country by wilfully destroying the caves at Juukan Gorge. If the native title system were about us and our rights to free, prior and informed consent over country, then this bill would never have seen the light of day.

This government's problem is that it can't take no for an answer. Our people do not give you consent. That should be enough. The desecration of Juukan Gorge: traditional owners did not consent. Fracking in the Northern Territory: traditional owners do not consent. Mining at Jabiluka: traditional owners did not consent. A nuclear waste dump in South Australia: traditional owners do not consent. The destruction of sacred Djab Wurrung trees: traditional owners do not consent. And yet here we are with this bill that does not affirm our rights to free, prior and informed consent. These rights belong to all Aboriginal people, not just the ones the government likes to hear from. The naive title system is just reinforcing the aims of the colonial project—it's all take, take, take, destroy and destruct. The colonial project has taken our lands, our waters, our children, our women, our laws, our country, our totems and our lives. And what do we get? We get thrown scraps and are told to be thankful—good old ration style, as if we were still on the mission. This government would have us feast on scraps and then tell us that we should be grateful when we demand what was denied to our ancestors.

Aunty Margaret Culbong, a proud Wadjuk elder, said the following at the committee inquiry into this flawed bill:

I've been fighting and I've walked these streets for law and justice for my people for many years … native title—

or naive title—

was never a part of my future for myself and for my grandchildren and everyone else. I have not ceded my rights to my country.

I honour your words, Aunty Margaret, and I speak them here today because they must be heard and they must be followed. Proud Mirnang Noongar man Mervyn Eades—brothaboy—also told the committee:

Native title—where it's come from and where it is today—serves our people no purpose. Native title has turned into the interest of mining companies and the states. They've taken all rights away from us.

The Warnpurru Aboriginal Corporation put it best when they said:

Can you please change the rule, change the law, because my people want to live out there, want to hunt and gather, want to do our ways of life as we've lived and the way our ancestors lived.

That's what we, as people in this parliament, must do: we must change the rules to allow our people to live the way they want to live—in the way of their ancestors, if that is what they want. If the government were serious about working with our people, it would genuinely involve traditional owners on all decisions over country and facilitate them getting free, prior and informed consent—in the same way it moves mountains when mining companies come knocking on these halls. This bill doesn't do that. This is why I am seeking to amend it. Let's keep the section that will benefit our people most. Let's open up areas of Crown land to native title claims—by agreement, sovereign to sovereign—because until we have a treaty, or treaties, there can be no consent. With actions that happen on country, if traditional owners do not consent then that is the end of the matter.

May I remind everyone in this chamber that we are all on stolen land and that we benefit from the stolen resources—it's not the first people of this country that benefit.

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

Senator Thorpe, you had foreshadowed you'd be moving amendments. Do you wish to move those now?

Lidia Thorpe (Victoria, Australian Greens) Share this | Link to this | Hansard source

Yes, I'd like to move the amendments.

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

They are Committee of the Whole amendments and, in that case, we'll deal with them in the committee.

Matt O'Sullivan (WA, Liberal Party) Share this | Link to this | Hansard source

I rise today to speak on the Native Title Amendment (Infrastructure and Public Facilities) Bill 2020. This bill amends the Native Title Act 1993 to extend the operation of subdivision 24JAA for another 10 years, extending a sunset clause that was last legislated in 2010. Now, for those listening at home, section 24JAA provides, through legislation, a process to assist the timely construction of public housing, staff housing and limited classes of public facilities by or on behalf of the Crown, or a local government body, or by other statutory authorities of the Crown in any of its capacities. It's for Aboriginal and Torres Strait Islander people in communities on Indigenous held land.

It's important to note at this point that the operation of this amendment applies only to land, because the operation of this law applies to the construction of facilities and buildings. It is incompatible with native title areas offshore, for obvious reasons. Acts relating solely to offshore places are covered by subsection (n).

Section 24JAA operates as an important mechanism between an Indigenous land use agreement and compulsory acquisition, enabling future acts to be done legally and validly, and processing critical Indigenous housing and infrastructure construction in a timely and, importantly, effective manner. This is achieved while also safeguarding native title rights. Without the provision, the alternatives are to enact an Indigenous land use agreement that, as those who have been involved in this space will know, can take a very, very long time to finalise. In fact it can take years to finalise, or it may not be able to be finalised at all. Compulsory acquisition is the other option, but that will extinguish native title. So these options really are not acceptable when Indigenous communities require housing or other essential infrastructure services now.

In accordance with the established non-extinguishment principle of the Native Title Act, the bill continues to ensure that native title is not extinguished by the production of public housing and infrastructure and that the provision provides for the compensation. Extending the operation of section 24JAA for a further 10 years will support relevant authorities to continue to meet unmet public infrastructure needs, while also continuing to safeguard the rights and interests of native title holders and claimants. Limiting the period of the extension to a further 10 years provides the opportunity to reassess the need for provision of this in the future, and it will allow the government to make changes, as appropriate, at the time, as was done 10 years ago.

There are many types of facilities that may be provided under section 24JAA. This includes public housing for Aboriginal and Torres Strait Islander people living in or in the vicinity of native title areas. It enables public education and health facilities, police and emergency facilities, that principally are there primarily for the benefit of Aboriginal and Torres Strait Islander peoples living in the areas, to be included—

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

Order, Senator O'Sullivan. Please resume your seat. Do you rise on a point of order, Senator Ciccone?

Raff Ciccone (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I do, Mr Acting Deputy President. Just to bring to the senator's attention, I think he's speaking on an old bill from last year. The section that the senator refers to was with respect to a bill that was debated last year. I just wanted to let you know that he could be reading from the wrong notes.

Matt O'Sullivan (WA, Liberal Party) Share this | Link to this | Hansard source

Well that may be the case, and I do apologise to the Senate. I'll leave it there.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

As a servant to the people of Queensland and Australia, I want to support the Native Title Legislation Amendment Bill 2020. I've visited almost all Indigenous Aboriginal communities in North Queensland. I know the complexities that they face, and it is hurting the people, our people. I also have been, and am, a member of the northern development agenda inquiry, and land tenure is something that is hurting our people—not only Aboriginal people, but all other people in the north. These are my people. We are all one nation. That is why we support this easing of complexities that are costing many people on the ground dearly.

I note though that this bill touches on compensation that may be payable under paragraph 51(xxxi) of the Constitution, as that relates to the acquisition of property, so I want to put a question to the government: when are tens of thousands of farmers across our country going to get the same compensation under section 51(xxxi)? The Howard Anderson Liberal-National government stole these farmers' property rights across the country using the states as a vehicle to get around section 51(xxxi). Yet Premiers Peter Beattie and Bob Carr, in Queensland and New South Wales respectively, say they did it—and Premier Beattie put it in writing—for the Howard government so as to enable the government to comply with the UN's Kyoto protocol at the then Prime Minister's request.

In 1998 and 2004, the Queensland Labor government received hundreds of millions of dollars of taxpayer money to steal farmers' property rights. They were bribes to the Queensland government to enact this legislation. That was done through the states because the states have no commitment and no responsibility to provide compensation. So my question is: when will the federal government fulfil its responsibilities under our Constitution and provide restoration of farmers' property rights or compensate them for stolen property rights—restoration or compensation?

Let me end with this: Prime Minister Morrison says it won't cost Australia to comply with the UN's Kyoto and Paris climate dictates. That's because he's still relying upon the credits from Kyoto, and that depends upon the theft of property rights from farmers right across our country. When will we see restoration of those rights? When will we see compensation—restoration or compensation?

Amanda Stoker (Queensland, Liberal Party, Assistant Minister to the Attorney-General) Share this | Link to this | Hansard source

I table a replacement revised explanatory memorandum relating to this bill.

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

Thank you. I notice Senator Waters has just entered the chamber. Having tabled that, do you wish to keep your concluding remarks until she's made her contribution?

Amanda Stoker (Queensland, Liberal Party, Assistant Minister to the Attorney-General) Share this | Link to this | Hansard source

Yes, thank you.

Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

Thank you all for your indulgence in the chamber. My colleague Senator Thorpe has just spoken powerfully on the concerns that the Greens have with the Native Title Legislation Amendment Bill 2020. The fact that the Minerals Council thinks it's a great idea should, frankly, be cause enough for concern over the risks that the bill presents to First Nations justice.

I'd like to speak briefly in support of the Greens' amendments and offer some examples from the First Nations communities in Queensland that I've spoken with about the injustices that the native title system has emphasised. Last week I spoke with representatives of the Sovereign Native Tribes of the Kabi First Nation, whose cultural site Djaki Kundu is currently being threatened by the planned expansion of a highway near Gympie. They said that their experience of the native title system is that it 'divides nations and pits us against each other', allowing governments and developers to select who they think speaks for country. Our concern is that this bill would further entrench that.

In schedule 1, the amendments would allow native title bodies to move away from consensus decision-making and to allow votes to be taken by majority. This position is strongly opposed by many First Nations groups. It's inconsistent with international law. It's inconsistent with the recognised principles of the right to self-determination and the free pursuit of social, economic and cultural development, which is, of course, article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Many First Nations groups are concerned that allowing decision making by a hard majority, rather than unanimously, will allow registered native title bodies corporate to manoeuvre around and abuse the powers that are conferred on those representative bodies.

In my home state of Queensland, the Wangan and Jagalingou people have fought long and hard against the Adani Carmichael coalmine—I think they now call themselves a different name, but folks still know it by that name. The mining company insisted that it had the consent of native title holders, but traditional owner Adrian Burragubba, who speaks for that land, has been bankrupted, has been bullied and has faced trespass charges for his efforts to protect his country. Further weakening of the consent requirements would see more and not less conflict among First Nations groups over contested resources projects. In the past I've spoken at length about Mr Burragubba's struggles and the injustice that has been perpetrated upon the W&J people, so I won't go into that now with my eye on the clock.

I recently also met with another group of sovereigns near Hope Vale in Far North Queensland. The Thitharr Warra and other common-law clan groups are strongly opposed to Diatreme Resources' Galalar silica mine. The proposal threatens water sources and cultural grounds as well as threatened species and significant geological features at Cape Bedford. The Thitharr Warra have accused their registered native title body of bullying, misrepresentation, accepting favours, hiding critical information, denying access to native title land and failing to undertake appropriate consultation to secure support for the Indigenous land use agreement.

Again, formalising governance structures that remove consensus will remove an avenue for First Nations owners to challenge decisions that purport to be made in their name but which they strongly disagree with. Those examples have quite a lot of similarities to the challenges faced by the Noongar claimants that led to the court decision—McGlade—that provoked this very bill. Legislating to default to majority decision-making is not the right response. Indeed, it goes against the full, frank and comprehensive consultation with all affected native title holders. What is needed is greater support to allow such consultation to occur, and any perceived administrative benefits in streamlining the process are far outweighed by potential discrimination and manipulation by a few against the balance of all native title holders.

Schedule 7 provides for additional dispute resolution assistance from the National Native Title Tribunal, although it is not entirely clear precisely what form that assistance would take. It's critical that the cost of accessing such assistance is not pushed unfairly onto native title groups and denied to those groups who are unable to pay. The RNTBC has a statutory role to consult and resolve disputes and should bear the costs of the resolution unless another arrangement is agreed to between the parties.

Schedule 8 proposes a number of amendments to the Corporations (Aboriginal and Torres Strait Islander) Act regarding the governance of those registered native title body corporates. But, whilst there are many changes needed to strengthen governance, it is entirely premature to amend the C(ATSI) Act while the comprehensive review of that act by the National Indigenous Australians Agency is still ongoing. I would have thought that was a fairly basic principle.

As I mentioned earlier, the Kabi Nation is currently in dispute with the Queensland government over plans for a highway that would destroy the sacred site of Djaki Kundu. The former representative body, the Yangga Buwan Aboriginal corporation, recognised the Kabi council of elders and First Nations governance structures that would have allowed the Kabi elders to speak against this destruction. But that body was dissolved without notice to the Kabi elders. They allege that the new registered corporation ignores the voices of the council of elders. It's that body that the Queensland government has consulted to get consent, despite the longstanding vocal opposition of the Kabi elders.

Members of the Thitharr Warra groups have expressed to me their support for strengthening the C(ATSI) Act to enforce rules regarding transparency and to allow native title holders to deal with improper behaviour and misuse of cancellation provisions by registered native title bodies corporate; however, they are strongly opposed to provisions that would require proceedings to be brought in the Federal Court, where applicants are already experiencing severe delays.

Finally, on schedule 9, as Senator Thorpe has set out, the decision in McGlade very explicitly and intentionally reversed the previous position on the retrospective validation of Indigenous land use agreements, ILUAs. Seeking now to get around that conclusion, even where an ILUA is compromised by fraud or misconduct, is unjustified. ILUAs are a critical document in the expression of and, in many cases the relinquishing of rights to country. They must only be formalised with the informed consent of all affected native title holders.

The Greens want to see a fair, accessible and effective system that delivers outcomes for First Nations people consistent with the UN Declaration on the Rights of Indigenous Peoples and consistent with international human rights law. In asking whether this bill improves the recognition and rights of native title holders, we conclude that it does not.

Amanda Stoker (Queensland, Liberal Party, Assistant Minister to the Attorney-General) Share this | Link to this | Hansard source

I thank all those who've made contributions to this debate on the Native Title Legislation Amendment Bill. The bill will amend the Native Title Act and the Corporations (Aboriginal and Torres Strait Islander) Act to make practical and pragmatic improvements to ensure the ongoing effectiveness of the native title system. In doing so, the bill will implement recommendations from a range of reviews of the native title system, including the Australian Law Reform Commission's report called Connection to country: review of the Native Title Act 1993.

Passage of this bill will improve the native title system for all parties by supporting the capacity of native title holders through greater flexibility around internal decision-making, by streamlining claims resolution and agreement-making processes, by allowing historical extinguishment to be disregarded over areas of national, state or territory parks with the agreement of the parties, by increasing the transparency and accountability of native title corporations to native title holders and by improving pathways for dispute resolution following a determination of native title. The bill will also confirm the validity of important mining and exploration related agreements made under section 31 of the Native Title Act that are potentially affected by the full Federal Court's decision in McGlade v Native Title Registrar and others.

There have been some concerns raised in the course of debate by Labor and Greens senators. I've listened to them carefully and I acknowledge them. The Senate Legal and Constitutional Affairs Legislation Committee undertook a comprehensive inquiry into the provisions of this bill and recommended that the Senate pass it. The committee's report included a minority report from Labor senators which, while supporting the objectives of the bill, made five recommendations. Recommendations 1, 3 and 4 of that minority report are directed to the government commissioning or undertaking further review and reform of the Native Title Act. The government has taken action to implement these recommendations by including a statutory evaluation mechanism in the bill. A new section 209A will require a formal evaluation of the amendments in the bill to be conducted within five years of the commencement of most of the bill. The government has also undertaken to request the Aboriginal and Torres Strait Islander Social Justice Commissioner to conduct a review of the operation of the Native Title Act.

A further overhaul of the native title system, including so that native title holders can better leverage their land and sea assets, as recommended by recommendation 3 of the minority report, would need to be considered in light of the results of those formal evaluations of the amendments made by the bill and the outcomes of the Aboriginal and Torres Strait Islander Social Justice Commissioner's review process.

Recommendation 2 of the minority report called on the government to provide a comprehensive response to the 30 recommendations for reform in the Australian Law Reform Commission's 2015 report entitled, Connection to country: review of the Native Title Act 1993. This bill represents the government's response to the ALRC report and it implements those recommendations which received broad stakeholder support.

The committee's report into the bill also included a dissenting report from the Australian Greens senators. The dissenting report recommended that the bill not proceed until a number of matters were addressed. The government has provided further explanatory material in the form of the addenda to the explanatory memorandum to the bill that responds to the issues that were raised in the Greens' dissenting report. That further explanatory material clarifies the intended effect of the removal of an agreement from the Register of Indigenous Land Use Agreements, the role of the Commonwealth minister as an intervenor in native title proceedings and the intended operation of the new ground of allowing the Registrar of Indigenous Corporations to place a registered native title body corporate under special administration when it has either seriously or repeatedly failed to comply with its obligations under native title legislation.

The amendments will not enable the retrospective application of certain provisions of the bill in the manner that has been suggested by the dissenting report. The dissenting report also raised concerns in relation to the interaction of schedule 3 of the bill with statutory land rights under the New South Wales Aboriginal Land Rights Act. Schedule 3 will enable parties to agree to disregard the historical extinguishment of native title over an area that has been set aside or vested to preserve the natural environment. The drafting of this measure includes a number of specific safeguards to ensure the recognition and protection of existing third-party interests, including those of New South Wales Aboriginal land councils.

Importantly, the measure will only operate where native title and government parties agree—it's very important that we have that on record—and will be subject to any conditions required by the government party. This measure has been designed to allow the relevant government and native title parties to work together to ensure the use of this provision complements existing rights and interests, including those of the New South Wales Aboriginal land councils.

I'd like to turn to deal with some of the concerns that have been raised during senators' contributions in the course of debate. The first was to suggest that, as was raised by Senator Dodson, there were difficulties in the way that this bill deals—

Scott Ryan (President) Share this | Link to this | Hansard source

Order, Senator Stoker! You will be in continuation when debate resumes.